LRB-2181/2
KRP:ahe
2017 - 2018 LEGISLATURE
March 29, 2017 - Introduced by Senators Hansen, Ringhand, Johnson, Bewley,
Carpenter, Erpenbach, C. Larson, Miller, Risser, Shilling, L. Taylor,
Vinehout and Wirch, cosponsored by Representatives Sinicki, Ohnstad,
Hesselbein, Barca, Spreitzer, Meyers, Anderson, Berceau, Billings,
Brostoff, Bowen, Crowley, Doyle, Fields, Genrich, Goyke, Hebl, Kessler,
Kolste, Mason, Milroy, Pope, Riemer, Sargent, Shankland, Stuck, Subeck,
C. Taylor, Wachs, Young, Zamarripa and Zepnick. Referred to Committee on
Labor and Regulatory Reform.
SB140,1,4 1An Act to amend 111.39 (4) (d), 111.39 (5) (b) and 814.04 (intro.); and to create
2111.39 (5) (d) and 111.397 of the statutes; relating to: actions in circuit court
3alleging discrimination in employment, unfair honesty testing, or unfair
4genetic testing.
Analysis by the Legislative Reference Bureau
This bill permits the Department of Workforce Development or a person who
is alleged or was found to have been discriminated against or subjected to unfair
honesty or genetic testing to bring an action in circuit court in addition to or in lieu
of filing an administrative complaint. The bill, however, does not permit an action
for damages to be brought against any local governmental unit or against any
employer employing fewer than 15 individuals.
Under the bill, if the circuit court finds that a defendant has committed an act
of discrimination or unfair honesty or genetic testing, the circuit court may award
back pay and any other relief that could have been awarded in an administrative
proceeding. In addition,the circuit court must order the defendant to pay to the
person discriminated against compensatory and punitive damages that the circuit
court finds appropriate, except that the total amount of damage awarded for future
economic losses and for pain and suffering, emotional distress, mental anguish, loss
of enjoyment of life, and other noneconomic losses and punitive damages is subject
to the following limitations:
1. If the defendant employs 100 or fewer employees, no more than $50,000.

2. If the defendant employs more than 100 but fewer than 201 employees, no
more than $100,000.
3. If the defendant employs more than 200 but fewer than 501 employees, no
more than $200,000.
4. If the defendant employs more than 500 employees, no more than $300,000.
The bill requires DWD to annually revise these amounts based upon the change
in the consumer price index in the previous year, if any positive change has occurred.
Under the current fair employment law, a person alleging discrimination in
employment or unfair honesty or genetic testing may file a complaint with DWD
seeking action that will effectuate the purpose of the fair employment law, including
reinstating the employee, providing back pay, and paying costs and attorney fees.
The fair employment law, however, does not authorize DWD to award compensatory
or punitive damages to a complainant.
For further information see the state fiscal estimate, which will be printed as
an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB140,1 1Section 1. 111.39 (4) (d) of the statutes is amended to read:
SB140,3,22 111.39 (4) (d) The department shall serve a certified copy of the findings and
3order on the respondent, the order to have the same force as other orders of the
4department and be enforced as provided in s. 103.005. The department shall also
5serve a certified copy of the findings and order on the complainant, together with a
6notice advising the complainant about the right to seek, and the time for seeking,
7review by the commission under sub. (5); about the right to bring, and the time for
8bringing, an action for judicial review under s. 111.395; and about the right to bring,
9and the time for bringing, an action under s. 111.397 (1) (a).
Any person aggrieved
10by noncompliance with the order may have the order enforced specifically by suit in
11equity. If the examiner finds that the respondent has not engaged in discrimination,
12unfair honesty testing, or unfair genetic testing as alleged in the complaint, the
13department shall serve a certified copy of the examiner's findings served on the

1complainant, together with shall be accompanied by an order dismissing the
2complaint.
SB140,2 3Section 2. 111.39 (5) (b) of the statutes is amended to read:
SB140,3,144 111.39 (5) (b) If no petition is filed the respondent or complainant does not file
5a petition under par. (a)
within 21 days from the date that a copy of the findings and
6order of the examiner is mailed to the last-known address of the respondent served
7on that party,
the findings and order shall be considered final for purposes of
8enforcement under sub. (4) (d). If a timely petition is filed, the commission, on review,
9may either affirm, reverse, or modify the findings or order in whole or in part, or set
10aside the findings and order and remand to the department for further proceedings.
11Such actions shall be based on a review of the evidence submitted. If the commission
12is satisfied that a respondent or complainant has been prejudiced because of
13exceptional delay in the receipt of a copy of any findings and order , it the commission
14may extend the time another 21 days for filing the petition with the department.
SB140,3 15Section 3. 111.39 (5) (d) of the statutes is created to read:
SB140,3,2116 111.39 (5) (d) The commission shall serve a certified copy of the commission's
17decision on the respondent. The commission shall also serve a certified copy of the
18commission's decision on the complainant, together with a notice advising the
19complainant about the right to bring, and the time for bringing, an action for judicial
20review under s. 111.395 and about the right to bring, and the time for bringing, an
21action under s. 111.397 (1) (a).
SB140,4 22Section 4. 111.397 of the statutes is created to read:
SB140,4,9 23111.397 Civil action. (1) (a) Except as provided in this paragraph, the
24department or a person alleged or found to have been discriminated against or
25subjected to unfair honesty testing or unfair genetic testing may bring an action in

1circuit court requesting the relief described in sub. (2) (a) against any employer, labor
2organization, or employment agency that is alleged or found to have engaged in that
3discrimination, unfair honesty testing, or unfair genetic testing. The department or
4a person alleged or found to have been discriminated against or subjected to unfair
5honesty testing or unfair genetic testing may not bring an action under this
6paragraph against any local governmental unit, as defined in s. 19.42 (7u), or against
7any employer, labor organization, or employment agency employing fewer than 15
8individuals for each working day in each of 20 or more calendar weeks in the current
9or preceding year.
SB140,4,1310 (b) If a petition for judicial review of the findings and order of the commission
11concerning the same violation as the violation giving rise to the action under par. (a)
12is filed, the circuit court shall consolidate the proceeding for judicial review and the
13action under par. (a).
SB140,4,1714 (c) A person alleged or found to have been discriminated against or subjected
15to unfair honesty testing or unfair genetic testing is not required to file a complaint
16under s. 111.39 or seek review under s. 111.395 in order for the department or the
17person to bring an action under par. (a).
SB140,5,8 18(2) (a) Subject to pars. (b) and (c), in an action under sub. (1) (a), if the circuit
19court finds that discrimination, unfair honesty testing, or unfair genetic testing has
20occurred, or if such a finding has been made by an examiner or the commission and
21not been further appealed, the circuit court may order any relief that an examiner
22would be empowered to order under s. 111.39 (4) (c) after a hearing on a complaint
23filed under s. 111.39. In addition, the circuit court shall order the defendant to pay
24to the person discriminated against or subjected to unfair honesty testing or unfair
25genetic testing any other compensatory damages, and punitive damages under s.

1895.043 that the circuit court or jury finds appropriate, plus reasonable costs and
2attorney fees incurred in the action. If any relief was ordered under s. 111.39 or
3111.395, the circuit court shall specify whether the relief ordered under this
4paragraph is in addition to or replaces the relief ordered under s. 111.39 or 111.395.
5The sum of the amount of compensatory damages for future economic losses and for
6pain and suffering, emotional distress, mental anguish, loss of enjoyment of life, and
7other noneconomic losses and the amount of punitive damages that a circuit court
8may order may not exceed the following:
SB140,5,119 1. In the case of a defendant that employs 100 or fewer employees for each
10working day in each of 20 or more calendar weeks in the current or preceding year,
11$50,000.
SB140,5,1412 2. In the case of a defendant that employs more than 100 but fewer than 201
13employees for each working day in each of 20 or more calendar weeks in the current
14or preceding year, $100,000.
SB140,5,1715 3. In the case of a defendant that employs more than 200 but fewer than 501
16employees for each working day in each of 20 or more calendar weeks in the current
17or preceding year, $200,000.
SB140,5,2018 4. In the case of a defendant that employs more than 500 employees for each
19working day in each of 20 or more calendar weeks in the current or preceding year,
20$300,000.
SB140,5,2321 (b) If the circuit court orders any payment under par. (a) because of a violation
22of s. 111.321, 111.37, or 111.372 by an individual employed by an employer, the
23employer of that individual is liable for the payment.
SB140,6,3
1(c) 1. In this paragraph, “consumer price index" means the average of the
2consumer price index for all urban consumers, U.S. city average, as determined by
3the bureau of labor statistics of the federal department of labor.
SB140,6,164 2. Except as provided in this subdivision, beginning on July 1, 2019, and on
5each July 1 after that, the department shall adjust the amounts specified in par. (a)
61., 2., 3., and 4. by calculating the percentage difference between the consumer price
7index for the 12-month period ending on December 31 of the preceding year and the
8consumer price index for the 12-month period ending on December 31 of the year
9before the preceding year and adjusting those amounts by that percentage
10difference. The department shall publish the adjusted amounts calculated under
11this subdivision in the Wisconsin Administrative Register, and the adjusted amounts
12shall apply to actions commenced under sub. (1) (a) beginning on July 1 of the year
13of publication. This subdivision does not apply if the consumer price index for the
1412-month period ending on December 31 of the preceding year did not increase over
15the consumer price index for the 12-month period ending on December 31 of the year
16before the preceding year.
SB140,5 17Section 5. 814.04 (intro.) of the statutes is amended to read:
SB140,6,22 18814.04 Items of costs. (intro.) Except as provided in ss. 93.20, 100.195 (5m)
19(b), 100.30 (5m), 106.50 (6) (i) and (6m) (a), 111.397 (2) (a), 115.80 (9), 767.553 (4) (d),
20769.313, 802.05, 814.245, 895.035 (4), 895.044, 895.443 (3), 895.444 (2), 895.445 (3),
21895.446 (3), 895.506, 943.212 (2) (b), 943.245 (2) (d), 943.51 (2) (b), and 995.10 (3),
22when allowed costs shall be as follows:
SB140,6 23Section 6. Initial applicability.
SB140,7,3
1(1) Employment discrimination damages. This act first applies to acts of
2employment discrimination, unfair honesty testing, or unfair genetic testing
3committed on the effective date of this subsection.
SB140,7,44 (End)
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